Day's Tailor-D Clothing, Inc.

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF' DAY' S TAILOR-D CLOTHING INC.

CONSENT ORDER, ETC., IN R GARD TO THE ALLF.GED V!OLATlO", OF Sl':CS. 2(d) AND 2(e) OF THE CLAYTON ACT Docket 7288. Complaint, Nov. lD58- Deci.'N:on, )War. , 19.'. Consent order requiring a distributor of men s and boys' sportswear and work clothes in Tacoma, \Vash., to cease discriminating among its retailer customers by paying promotional allowances for cooperative advertising and furnishing" storag"c and display racks to certain favored customers but not to their competitors and not to all competing cutomers on proportionally equal terms.

COMPLAINT The Federal Trade Commission, having reason lo believe that the corporation named as respondent in the caption hereof, and hereinafter more particularly designated and described, has violated and is now violating the provisions of subsections (d) and (e) of Section 2 of lhe Clayton Act, as amenrled by the Robinson- Patman Act, approved June 19, 19% (Title Hi, D. C. Sec. l:J), hereby issues its complaint stating its charges with respect therelo as follows:

Count I PARAGRAPH 1. Respondenl Day s Tailor-D Clothing, Inc. , is a corporation, organized, existing and doing business under and corporation, organized, existing and doing business under and by virtue of lhe laws of the State of Washington, with its offces and principal place of business located at 29th and Pacific Streets Tacoma 1, Wash.

PAR. 2. Respondent is now, and for many years last past has been, engaged in lhe sale and distribution of men s and boys sportswear, industrial uniforms and \york clothing which it designs and manufactures or causes to be manufactured. Respondent sells such products for resale to many customers such as department stores, men s specialty shops and clolhing stores, which sell at retail from lheir places of business located throughout the western L'united States, Alaska and Hawaii, with major emphasis upon the Pacific Northwest area and the San Francisco-Oakland " Bay" area.

Respondent is a substantial factor in the sale of such products in said areas, with sales in excess of $2 000 000.00 annually. , DAY' S TAILOR-D CLOTHIi'C, INC. 1585 1584 Complaint Amung its product lines are " Iron Duke" whipcord trousers and jackets College Cords" and "Klondike King" trousers, and "San Juan " slacks.

PAR. 3. respondent, in the course and conduct of its business is eng-aged in commerce, as "commerce" is defined in the Clayton Act, as amended, having sold, distributed and transported, or caused the transportation of such products, from its place of business in the State of Washington to purchasers thereof located in other states of the linited States and in other places under the jurisdiction of the L:united States. Pall 4. In the course and conduct of its said business respondent has been, and is now, paying and contracting for the payment of money, goods, or other things of value to or for the benefit of some of its customers as compensation or in consideration for services and facilities furnished by and thruugh such favored customers in connection \with the sale or offering- for sale of respondent' s products. Said payments and contracts for payment to and for the benefit of such favored customers are not made available on proportionally equal terms by the respondent to all of its customers competing in the sale and distribution of said products.

PAR. 5. Among and inc1udecl in the payments referred to in paragraph II hereof are credits or sums of money paid by respondent by way of allowances, rebates, or deductions, as compensation or in consideration for promotional services or facilities furnished by its customers in connection with the offering for sale or sale of respondent's products. These include payments or allowances for cooperative advertising which \were made available to some but not all of respondent's customers competing in the resale of its products. In addition, among those competing customers who did receive such allowances from respondent, the allowances were frequently made available at varying times, on varying terms and in varying amounts.

PAR. 6. The aforesaid acts and practices of respondent as alleged in paragraph 1 through paragraph 5 hereof constitute violations of the provisions of subsection (d) of Section 2 of the Clayton Act (Title 15, D. C. Sec. 13) as amended by the Robinson-Patman Act, approved June 19, 1936.

Count II PAR. 7. Incorporated herein by reference are paragraph 1 through paragraph 3 uf Count I of this complaint. , 1586 FEDERAL TRADE CO'VIMISSION DECISIONS Decision 55 F.

PAR. 8. Respondent. for several years last past, has been discriminating in favor of some of its customers competing in the resale of its products by contracting to furnish or furnishing, or by contributing to the furnishing, of services or facilities connected with the handling, sale, or offering for sale of its said products upon terms not accorded to all of its competing purchasers on proportionally equal terms.

PAR. 9. Among' and included in the discriminations as referred to in paragraph 8 above is the furnishing by respondent of racks used for the storag-e and display of certain of respondent' s products by retailers. Respondent has made such services and facilities available to some but not to all of its customers con1peting in the resale of its products. In addition, among those competing purchasers who did receive such services and facilities from respondent, they were furnished on varying nonproportional terms. For example, they \\'erc furnished at no cost to certain customers whereas other competing purchaser ,were rcquil ed to contribute to the cost thereof.

PAR. 10. Also, among and included in the discriminations referred to in paragraph 8 above is the Iurni hing by respondent of billboard advertisements prominently displaying its name and products, and also featuring- the name of certain of its purchasers who sell such products at retail. Respondent has made such services and facilities available to some but nol to all of its customers competing in the resale of its products. In addition, among those competing purchasers \\'ho did receive such services and facilities from respondent, they were furnished on varying terms such as at no cost to certain customers whereas others were required to and did contribute to the cost thereof. PAR. 1 I. The acts and practices of respondent, as alleged in paragraph 7 through paragraph 10 hereof constitute violations of the provisions of subsection (e) of Section 2 of the Clayton Act (Title 15 , U. C. Sec. 13) as amended by the Robinson- Patman Act, approved June 19, 1936.

MI'. John J. McNally for the Commission. Hodge, Mann Pete)'son by M)'. Earl D. AI ann of Tacoma, Wash. , for respondent.

INITIAL DECISION BY LOREN H. LAUGHLIN, HEARING EXAMINER Count I of the complaint, issued herein by the Federal Trade Commission, charges respondent with violation of subsection (d) DA Y' S TAILOR-D CLOTHING INC. 1587 1584 Decision of 92 of the Clayton Act, as amended by the Robinson-Patman Act, approved ,June lD , 19:36, by paying and contracting for the payment of money, goods, or other things of value to or for thc benefit of some of its customers as compensation or in consideration for services and facilities furnished by and through sllch favored customers in connection with the sale or offering for sale of respondent' s products including men s and boys' sports- \veal' , industrial uniforms and work clothing. Count IT of the complaint charges respondent \with discriminating in favor of some of its customers competing in the resale of its said products by contracting to furnish or furnishing or contributing to the furnishing of services or facilities connected with the handling, sale or offering for sale of its said products upon terms not accorded to all of its competing customers on proportionately equal terms, in violation of subsection (e) of 92 of said Act. On January 2:3 , 1959, there was suhn1itted to the undersigned hearing examiner of the Federal Trade Commission for his consideration and approval an "Agreement Containing Consent Order to Cease and Desist " which had been entered into by and bet\veen respondent and the attorneys for both parties, under date of January 14 , 1959, subject to the approval of the Bureau of Litigation of the C01l1mission, which had subsequently duly approved the same.

On due consideration of such agreement, the hearing- examiner finds that said agreement, both in form and in content, is in accord with S3. 25 of the Commission s Rules of Practice for Adjudicative Proceedings, and that by said agreement the parties have specifically agreed to the following matters: 1. Respondent Day s Tailor-D Clothing, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Washington, with its offces and principal place of business located at 29th and Pacific Streets, Tacoma , Wash.

2. Pursuant to the provisions of the Clayton Act, as amended by the Robinson-Patman Act, approvcd June 19, 1936 (lI. Title, 1958, issued its 15, 913), the Commission on Kovember 5 complaint in this proceeding against respondent and a true copy thereof was duly served on respondent.

3. Respondent admits all of the jurisdictional facts alleged in the complaint and agrees that the record may be taken as findings of jurisdictional facts had been duly made in accordance with such allegations.

Dccision 55 F.

4. This agreement disposes of all of this proceeding as to all parties.

5. Respondent waives:

a. Any further procedural steps before the hearing examiner and the Commission;

b. The making of flldings of fact or conclusions of Jaw; and c. All of the rights it may have to challenge or contest the validity of the order to cease and desist entered in accordance with this agreement.

G. The record 011 which the initial decision and the decision of the Commission shall be based shall consist solely of the complaint and this agreement.

7. This agreement shall not become a part of the offcial record unless and until it becomes a part of the decision of the Commission.

8. This agreement is for settlement purposes only and does not constitute an admission by respondent that it has violated the law as alleged in the complaint.

9. The following order to cease and desist may be entered in this proceeding by the Commission without further notice to respondent. When so entered it shall have the same force and effect as if entered after a full hearing. It may be altcred, modified or set aside in the manner prnvided for other orders. The complaint may be used in construing the terms of the order. Upon clue consideration of the complaint filed herein and the said "Agreement Containing Consent Order to Cease and Desist the latter is hereby approved, accepted and ordered filed, the same not to become a part of the record herein, however, unless and until it becomes part of the decision of the Commission. The hearing examiner finds from the complaint and the said "Agreement Containing Consent Order to Cease and Desist" that the Commission has jurisdiction of the subject matter of this proceeding and of the respondent herein; that the complaint states a legal cause for complaint under 82 of the Clayton Act, as amended by the Robinson-Patman Act, both generally and in each of the particulars alleged therein; that this proceeding is in the interest of the public:; that the following order as proposed in said agreement is appropriate for the just disposition of all of the issues in this proceeding as to all of the parties hereto; and that said order therefore should be, and hereby is, entered as follows: DAY' S TAILOR-D CLOTHING INC. 1589 1584 Decision ORDER It is ordered That respondent Day s Tailor-D Clothing, Inc., a corporation, and its offcers; and respondent' s employees, agents and representatives, directly or through any corporate or other device, in, or in connection with the sale of work clothes, sportswear, or any similar products in commerce, as "commerce" is defined in the Clayton Act, as amended, do forthwith cease and desist from:

1. Making, or contracting to make, to or for the benefit of any customer, any payment of anything of value as compensation or in consideration for any advertising or any service or facilities furnished by or through such customer, in connection with the handling, offering for resale, or resale of products sold to him by respondent, or its successors and assigns, unless such payment is affrmatively offered or otherwise made available on proportionally equal terms to all other customers competing in the distribution or resale of such products.

2. Contracting to furnish, or furnishing, or contributing to the furnishing of any services or facilities connected with the handling, sale, or offering for sale of any of respondent' s said products to any purchaser from respondent, upon terms not accorded to all competing purchasers on proportionally equal terms. DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3. 21 of the Commission s Rules of Practice, the initial decision of the hearing examiner shall, on the 27th day of March 1959, become the decision of the Commission; and, accordingly:

It is ordered That respondent Day s Tailor-D Clothing, Inc. a corporation, shall, within sixty (60) days after service upon it of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which it has complied with the order to cease and desist.

1590 FEDERAL TRADE CO:\MISSION DECISIONS Decision 55 F.